Judges MacPhail and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 111 Pa. Commw. Page 440]

Frank Evanick (claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision to grant compensation benefits to the claimant for a closed period from May 17, 1980 through November 9, 1980 due to a

[ 111 Pa. Commw. Page 441]

work-related aggravation of a previously existing work-related injury and to suspend benefits thereafter. We affirm in part and reverse in part.

The claimant was employed by Fisher Scientific Company (employer) as an assembly line painter. On December 1, 1976, he suffered a compensable back injury and was paid workmen's compensation benefits under a notice of compensation payable. On August 29, 1978, the employer and PMA Insurance Company filed a termination petition alleging that the claimant was able to return to work as of April 4, 1978. Following several hearings the referee granted the employer's termination petition finding that the claimant had recovered from his December 1, 1976 back injury as of April 4, 1978 and that he suffered, at that time, only from mild degenerative back disease unrelated to his employment. Further, the referee found that the claimant was able to perform all the duties of his employment which included spray painting and lifting five gallon cans of paint. The claimant appealed the referee's decision to the Board which affirmed the referee but modified certain findings of fact, conclusions of law and the referee's order to result in a suspension rather than a termination of benefits.*fn1 Neither the claimant nor the employer appealed from that order.

Following receipt of the Board's order suspending his benefits the claimant contacted his treating physician

[ 111 Pa. Commw. Page 442]

concerning the possibility of his returning to work on a trial basis for economic reasons. His physician agreed to a return, but only on a trial basis, and the claimant did return to his former job on May 1, 1980. The claimant worked until May 16, 1980, during which period he suffered continuous pain and discomfort.

On April 9, 1981, the claimant filed a reinstatement petition against the employer and PMA Insurance Company*fn2 alleging that his disability status had changed on May 16, 1980. Further, on June 22, 1981, the claimant filed a claim petition against the employer and American Mutual Insurance Company*fn3 alleging an injury on May 16, 1980.*fn4 Following a number of hearings the referee found that the claimant aggravated his pre-existing work injury to the point of being disabled as of May 17, 1980. Further, the referee concluded that as of November 10, 1980 the claimant had fully recovered from his ...

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